December 5, 2007
SCOTUS keeps execution moratorium in place
As detailed in this SCOTUSblog post, the Justices continue to block every state effort to go forward with lethal injections. Here's the basics:
The Supreme Court on Wednesday afternoon delayed the execution of Thomas D. Arthur, previously scheduled for 6 p.m. on Thursday. Arthur has a petition pending (Arthur v. Allen, 07-395) challenging the state’s use of a lethal injection protocol to carry out executions.... The Court in recent weeks has not permitted any execution to proceed when the inmate has sought a stay while challenging lethal injection. It is scheduled to hold a hearing on such challenges on Jan. 7 at 10 a.m.
USSC public hearing next week to discuss crack retroactivity
Mark your calender, sentencing fans: as noted on the US Sentencing Commission's website, "a public meeting of the Commission is scheduled for Tuesday, December 11, 2007, at 3:30 p.m., in the Mecham Conference Center, Thurgood Marshall Federal Judiciary Building, Washington, D.C." This official notice provides a bit more background and this enticing agenda:
- Possible Votes on Retroactivity
I think this means we could have a decision on crack retroactivity as early as next week. But the word "possible" in the agenda, of course, might mean that the issue may not be settled that soon.
Some recent related posts:
- USSC analysis on potential crack amendment retroactivity impact
- Thoughtful review of crack amendment retroactivity debate
- Latest FSR issue covers crack sentencing
Ninth Circuit has busy day dealing with sentencing technicalities
The Ninth Circuit has there decision today dealing with three different technical sentencing questions. Based on a very quick scan, the ruling that looks most interesting is in US v. Macias-Valencia, No. 06-10711 (9th Cir. Dec. 5, 2007) (available here), which starts this way:
Does the mandatory minimum sentence of 10 years, prescribed by 21 U.S.C. § 841(b)(1)(A)(viii), apply to a conviction for conspiracy with intent to distribute, and attempted possession with intent to distribute, 50 grams or more of methamphetamine, even when no actual contraband was involved in the commission of the offense? Joining the Sixth Circuit, we answer “yes.”
House hearing on reentry and federal sentence reductions
A helpful reader altered me to the fact that, as discussed in this Houston Chronicle article, the House of Representative's Subcommittee on Crime, Terrorism, and Homeland Security on Thursday morning (Dec. 7) has this hearing scheduled on "Promoting Inmate Rehabilitation and Successful Release Planning." Of course, the Chronicle article, as excerpted below, gives a little different spin to the hearing than its official title suggests:
Drug traffickers, white-collar criminals, corrupt congressmen and thousands of other federal inmates could see their prison time slashed in half if legislation drafted by Rep. Sheila Jackson Lee becomes law. The House Judiciary crime subcommittee on Thursday will examine a bill by the Houston Democrat that would mandate early release for federal inmates convicted of nonviolent crimes if they are 45 or older, have served at least half their sentence and have not engaged in violent conduct behind bars.
Jackson Lee described her legislation as a way of returning nonviolent offenders to society so they can be productive citizens, help their families and reduce spiraling incarceration costs. "This legislation is to reward good behavior," Jackson Lee said in an interview. "It is a process intended to protect the public as well as to provide some relief for the families and these individuals who can be adjudged rehabilitated or ready to be released in some form."
Jackson Lee's proposal could free some high-profile, white-collar criminals from prison early. Among the possible beneficiaries: former Enron executives Jeffrey Skilling and Andrew Fastow, disgraced lobbyist Jack Abramoff, recently convicted Houston oilman Oscar Wyatt and, according to federal Bureau of Prisons estimates, as many as 12,400 others.
Some civil rights advocates have argued that a 1984 law establishing mandatory minimum sentences, aimed primarily at drug offenders, has resulted in harsh penalties for thousands of minority citizens.
House Republicans oppose the bill, which would undo the sentencing structure that Congress imposed in 1984 when it effectively ended parole in the federal prison system and required that most offenders serve at least 85 percent of their sentences. "Democrats should think long and hard before supporting a bill that would severely damage our criminal justice system and could have catastrophic effects on society as a whole," said Rep. Randy Forbes of Virginia, the top Republican on the crime subcommittee.
Not only do I find the hearing itself of great interest, but I think the media and public discussion of the hearing could be very important as prominent candidates on both sides of the aisle are dealing with notable crime and punishment issues.
Some recent related posts:
Bottom-side brief in Baze
Though filed on Monday, I cannot seem to find the State of Kentucky's SCOTUS brief in Baze on line. If/when someone sends the brief or a link my way, I'll post it here.
UPDATE: Ask and yea shall receive. A helpful reader sent me a pdf of Kentucky's brief, which can now be downloaded below.
Apparently now's the time to talk about Huckabee's "Willie Horton"
Way back in March in this post, I highlighted the sentencing story within this fascinating Salon piece discussing the prospects of Republican candidate Mike Huckabee. That story discussed Huckabee's "willie Horton" problem in the form of Wayne Dumond, a rapist paroled in Arkansas when Huckabee was governor who murdered a woman after being released. Perhaps because Huckabee continues to rise in the polls, this story is now garnering new nation attention. Byron York explains in this new item from the National Review Online:
In August, I interviewed former Arkansas governor Mike Huckabee about the case of Wayne Dumond, the convicted rapist who was freed under Huckabee’s administration, only to rape and kill a woman in neighboring Missouri. The crime attracted enormous attention in Arkansas, but at the time of our interview, it had not made its way into much coverage of Huckabee’s presidential bid. “If [Huckabee] continues to rise in the polls,” I wrote, “it’s likely he’ll be talking about it a lot more.”
Now Huckabee is rising in the polls, and sure enough, the Dumond case is attracting more attention. This morning, ABC News ran a report featuring the mother of the woman Dumond murdered, who blames Huckabee for her daughter’s death and vows to do everything she can to stop his campaign. “I can’t imagine anybody wanting somebody like that running the country,” the woman told ABC.
The story seems to be developing from many angles, and here's additional coverage from Murray Waas at The Huffington Post. This item at Monsters and Critics.com simply asks "Is Wayne Dumond Huckabee's Willie Horton?"
The struggle with prison overcrowding in the UK
Just like nearly every state in the US, the UK is struggling with overpacked prisons. This Reuters story details the problems and the government's brewing reponse:
Justice Secretary Jack Straw will reveal on Wednesday how the government plans to deal with the crisis of overcrowding in prisons. He will publish the findings of a review by life peer Lord Carter which newspapers report may controversially recommend keeping convicted offenders out of jail when there is not enough space to lock them up. The review may also propose selling off inner-city jails on prime development land and using the proceeds to build more prison space elsewhere to hold high-risk inmates.
At the end of last week, jails were so full with 81,864 prisoners that 177 offenders were being held in police cells. The government has been forced to release 11,000 prisoners early since June to cope with the lack of cells.
Straw has indicated in recent speeches that he favours a greater use of non-custodial sentences, especially for those given sentences of less than a year. The prison population has been rising because sentences have grown longer, with average custodial sentences from crown courts rising to over 25 months from 20 months between 2005 and 1995.
And this related story from The Times is headlined "Hopes pinned on American-style sentencing grid to reduce prison overcrowding." Here is how it starts:
Radical proposals to examine a US-style system of sentencing intended to control the number of offenders sent to overcrowded jails will be outlined by ministers today, The Times has learnt.
Senior judges have expressed concern that the controversial proposals to review the prison-building programme and the impact of sentencing on population could lead to curbs on their sentencing powers.
December 4, 2007
Local follow-ups to new JPI report on racial disparities
As detailed here, Justice Policy Institute today released a new report that "documents racial disparities in the use of prison for drug offenses in 193 of the 198 counties that reported to government entities." This report seems likely to get more local media attention than most similar reports because this webpage also provides links to an Interactive Map with associated county fact sheets. Indeed, I already see these headlines and stories thanks to Google news:
- Bay Area counties toughest on black drug offenders from the San Francisco Chronicle
- Dane County 3rd nationally in racial disparity from the Wisconsin State Journal
- Forsyth comes up high in rating from the Winston-Salem Journal
I suspect there will be more of these types of stories in local papers int he days ahead.
SCOTUS talks about OJ and ponders the impact of race
Lyle Denniston at SCOTUSblog has this post and Mark Sherman for the AP has this story discussing oral argument today in Snyder v. Louisiana, 06-10119. Lyle's post is titled "Trial judges on trial?" and it starts this way:
The case of Snyder v. Louisiana (06-10119) may live in history as a case about using O.J. Simpson’s legal troubles as a way to “play the race card” before an all-white jury trying a black man. The Supreme Court, in a hearing on Tuesday, showed some fascination with that part of the case. But the decision that ultimately emerges from the Court may also bring a call for trial judges to take a more active role in monitoring the race factor in criminal trials. Justice Anthony M. Kennedy, in fact, implied that there may be a price to pay if judges do not take the hint: they won’t get the usual respect and deference, in appeals, for their conduct of trials.
The oral argument transcript is available at this link.
Padilla sentencing hearing rescheduled
As this AP report details, the upcoming sentencing for Jose Padilla looks like it could be real interesting. But, as the report also details, the sentencing hearing that had been slated to start this week now has been pushed back to January.
Second Circuit confirms writ of audita querela as a viable "hail mary" motion
A tiny per curiam opinion today from the Second Circuit in US v. Richter, No. 06-1930 (2d Cir. Dec. 4, 2007) (available here), has an important sentence that could be a very big deal for criminal defendants needing a special avenue to get into the courthouse door. In Richter, the panel denies a petitioner's writ of audita querela, but has this important line along the way: "if the absence of any avenue of collateral attack would raise serious constitutional questions about the laws limiting those avenues, then a writ of audita querela would lie."
I think this could mean that if you have a really strong substantive claim for attacking a conviction and sentence, but all the courthouse doors are otherwise closed, a writ of audita querela is the answer. Of course, as Baltimore Raven fans know well, even when a last-minute hail mary pass connects, victory is not assured. Still, the Second Circuit's acknowledgement that a writ of audita querela is sometimes available seems of great import.
Another brave new world innovation for dealing with sex offenders
A helpful student alerted me to this fascinating news coming from the great state of Ohio concerning sex offender management. (Technocorrection fans might want to be sitting down when reading this.) Here are the basics:
State Sen. Tim Grendell of Chester Township, a vocal supporter of various measures aimed at getting tougher on crime, says he is excited about a Geauga County company's proposal "to take real-time monitoring of sex offenders to a new level." He has invited the company to make a presentation Wednesday to a Senate subcommittee on a device it is developing and seeking to patent called "Offendar," short for offender radar.
Offendar LLC is marketing it as a "personal threat detection system featuring a key-fob sized electronic device." The device would give the person carrying it "a vibrating, auditory or visual alarm when a sex offender or other person wearing a court-ordered electronic ankle bracelet is in the immediate vicinity." Why is the company proposing it? "The public wants more than after-the-fact tracking of sex offenders. Many people want to know when a threat is in the vicinity so they can take steps to protect themselves and their children before something happens," according to the company's presentation....
Grendell seems to have no reservations about the company's proposal. "In seeing their idea and understanding how it can enhance what Ohio is already doing, I was very impressed," he said in a memo Monday to fellow lawmakers and the media.
As of this writing, I cannot yet find a website for "Offendar LLC." I'm not sure I would be "very impressed" by a company marketing a new high-tech device that does not even have a company website. But maybe Offendar LLC has just been spending all its R&D time on its Offendar device.
UPDATE: Sorry for the snark, Offendar LLC, since now I see the company does that this website at offendar.com.
As regular readers know, I think lots of important technocorrection innovations are inevitable (and will raise all sort of new legal issues), in part because private industry will be devising and marketing new ways to achieve public safety. The work of Offendar LLC, and its ability to quickly get the attention of a prominent state Senator, confirms my views.
Some related posts on sex offender GPS tracking:
More questions about Clinton's opposition to crack guideline retroactivity
This post at the Drug War Chronicle blog asks "Is Rudy Giuliani Shaping Hillary Clinton's Stance on Drug Laws?". The post notes that Clinton's team has defended her opposition to the new crack guidelines being retroactive by citing Giuliani's apparently similar position. Here is the potent end to the potent post:
We must now ask ourselves to what extent Hillary's other drug policy positions have been shaped by Rudiphobia. When she raised her hand in opposition to marijuana decrim, was that for real? Was there a little Giuliani in a devil suit whispering in her ear, threatening to tell the swing voters what a hippie she is? Will she backtrack on medical marijuana and needle exchange if Giuliani says he disapproves?
We can spend eternity smashing minority communities with our drug war hammers at the behest of authoritarian demagogues like Rudy Giuliani. And if no one speaks up, that's exactly what will happen. So if Giuliani wants to publicly embrace racist drug war politics, let him. The antidote to the "soft on drugs" label is to stop looking over your shoulder and start speaking with conviction.
Some recent related posts:
UPDATE: I now see that Celeste Fremon has picked up on this issue in this post at The Huffington Post. I will remain intriguing to see if this issue continue to have traction since, as detailed in this item from Politico, suggesting that "one of Clinton's real vulnerabilities [is the] perception that she's driven by polls, not conviction."
SCOTUS resolves easy(?) ACCA issue, provides tea leaves
As Lyle Denniston reports here at SCOTUSblog, the Supreme Court handed down two opinions this morning, including a unanimous opinion by Justice Ginsburg in Logan v. United States (available here). Here is Lyle's account of the Logan ruling:
The Logan case involved the interpretation of the phrase “civil rights restored” in the federal Armed Career Criminal Act. Those who have been convicted previously of felonies and are then convicted of possessing guns are subject to a maximum sentence of ten years, but that maximum is increased to life for those who have had three prior convictions for violent felonies — including violent misdemeanors. But Congress exempted from that enhancement feature those who have had their civil rights restored. James D. Logan of Janesville, Wis., was convicted of being a felon posseesing a gun and was sentenced to 15 years in prison, based upon three prior convictions for misdemeanor battery — a crime that causes no loss of civil rights. Logan argued that convictions that carry no loss of civil rights should be treated the same as those for which rights were lost then later restored. The Court rejected that claim. “Congress did not include offenders who retained civil rights at all times in its dispensation for offenders whose civil rights have been restored,” Justice Ginsburg said. “We are not equipped to say what statutory alteration, if any, Congress would have made had its attention trained on offenders who retained civil rights.” And, she added, the Court cannot “recast” the law in a way that Congress did not.
Logan struck me as a relatively easy case and this result is not at all surprising. Indeed, what makes the case worth reading is mostly an effort to read between the lines for tougher cases on the horizon, ranging from Gall and Kimbrough, to harder ACCA cases to be argued in January, to the gun rights restriction debate that may surround the Second Amendment case.
Particularly for Gall and Kimbrough, the emphasis on statutory construction in Logan is notable. Though perhaps most significant is the fact that Justice Ginsburg's authorship likely means she is not the main author for the opinions in Gall and Kimbrough. (Same goes for CJ Roberts, who authored the other civil opinion issued today, although both cases decided today come from the Court's second sitting this Term, whereas Gall and Kimbrough came from the first.)
New JPI report on racial disparities in incarceration
At a time when race and sentencing policy are entering the national political debate (details here and here), the Justice Policy Institute has produced an important new report showing the pervasiveness of racial disparities in imprisonment. The new report, which is entitled "The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the Characteristics of Punitive Counties," can be accessed at this webpage. That webpage also provides links to an Interactive Map with associated county fact sheets, and it also has this official press release concerning the report. Here are excerpts from the press release:
A new report released today by the Justice Policy Institute (JPI) finds that 97 percent of the nation's large-population counties imprisoned African Americans at a higher rate than whites. The report documents racial disparities in the use of prison for drug offenses in 193 of the 198 counties that reported to government entities.
“The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the Characteristics of Punitive Counties,” found that counties with higher poverty rates, larger African-American populations and larger police or judicial budgets imprison people for drug offenses at higher rates than counties without these characteristics. These relationships were found to be independent of whether the county actually had a higher rate of crime. (The findings for the 198 counties.)...
“The exponential removal of people of color who have substance abuse problems from their communities and into prisons undermines and destabilizes neighborhoods-- it does not make them safer,” says Ethan Nadelmann, executive director of the Drug Policy Alliance. “Drug addiction doesn’t discriminate but our drug policies do.” The report is being released just days before the Drug Policy Alliance hosts its 2007 International Drug Policy Reform Conference in New Orleans, Louisiana.
I hope that this interesting and important report gets all the attention it deserves. I also hope that all the presidential candidates get asked hard questions based on this report. Notably, as detailed in prior posts here and here, earlier reports indicate that the state with the highest black-to-white incarceration ratio for all crimes is Iowa, so this is a very important issue in the state that gets to vote first during the early political season.
Some related posts on racial disparities in incarceration:
Some related on sentencing politics:
Should "lack of remorse" justify a higher sentence?
This piece from the Canadian Press provides the latest news in the run-up to next week's sentencing of Conrad Black. Here are some details:
Conrad Black's lack of remorse following his conviction for fraud and obstruction of justice should be factored into next week's sentencing and possibly result in a harsher punishment, U.S. prosecutors said. "To this day, Black maintains his offences of conviction were 'rubbish' and 'nonsense,' and that the criminal justice system is 'essentially a substitute for a wealth-redistribution policy,"' lead prosecutor Eric Sussman said in a court filing late Monday....
Prosecutors said the judge should consider specific comments made in Men's Vogue and BBC Radio - where just last week Black said spending any time behind bars would "compound the injustice" of his criminal trial....
James Morton, president of the Ontario Bar Association, said he believed Judge Amy St. Eve "will be too smart to get really annoyed" on Black's comments, but cautioned making such statements "doesn't sing well."
Most participants and observers of sentencing realities will say that true remorse generally should, and typically will, mitigate an offender's punishment. But there is more debate over whether a distinct lack of remorse ought to be an aggravating sentencing factor.
Also lurking in the Black sentencing are interesting post-Booker ex post facto issues. The Seventh Circuit has held that, after Booker, courts should apply the most recent guidelines, but Black's lawyers seems to be fighting the application of harsher guidelines that post-date his criminal activity.
The severity of felony murder responsibility
In today's New York Times, Adam Liptak has this article entitled, "Serving Life for Providing Car to Killers." Here are a few excerpts:
The felony murder rule, which has many variations, generally broadens murder liability for participants in violent felonies in two ways. An unintended killing during a felony is considered murder under the rule....
India and other common law countries have followed England in abolishing the doctrine. In 1990, the Canadian Supreme Court did away with felony murder liability for accomplices, saying it violated “the principle that punishment must be proportionate to the moral blameworthiness of the offender.” Countries outside the common law tradition agree. “The view in Europe,” said James Q. Whitman, a professor of comparative law at Yale, “is that we hold people responsible for their own acts and not the acts of others.”
But prosecutors and victims’ rights groups in the United States say that punishing accomplices as though they had been the actual killers is perfectly appropriate.... Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims’ rights group, said “all perpetrators of the underlying felony, not just the one who pulls the trigger” should be held accountable for murder.
December 3, 2007
Weldon Angelos files 2255 motion
Regular readers will recall the name Weldon Angelos; Angelos faced a mandatory minimum sentencing term of 55 years following three small hand-to-hand marijuana sales. Some months ago, Weldon's sister asked if I would help with his 2255 motion. Aided by a great legal team working pro bono, this motion was completed and filed in federal district court today. The full 50-page motion, which makes an array of constitutional arguments, can be downloaded here:
Because I am essentially counsel of record, I do not plan to discuss or debate the merits of the motion on this blog. But I cannot help but use this forum to try to solicit amici support. Persons concerned with any number of criminal justice issues — ranging from extreme mandatory minimum sentences, prosecutorial charging and bargaining practices, convictions based solely on informant testimony, the reach of the Second, Fifth, Sixth and Eighth Amendments and principles of equal justice — should find the Angelos case interesting and perhaps worthy of some "friendly" brief writing.
UPDATE: The Salt Lake Tribune reports on the filing in this article.
Seeking to clear up Clintonian confusion on crack retroactivity
In the wake of crack retroactivity discussion by the Democratic presidential candidates, the ACLU has issued this new press release to "correct misconceptions about retroactivity." Here are excerpts:
- All offenders would first have to go before a court to have their case reviewed and argue that they are fit to be freed. People would not automatically be released from prison. Offenders who qualify for release under the new guidelines would have to appear before a judge, who would make the decision as to whether the person should be released from prison.
The following can be attributed to ACLU Legislative Counsel Jesselyn McCurdy: "The USSC changed the crack cocaine sentencing guidelines last month because the commission realized they were unfair. It makes no sense to call a law unjust and in the same breath say it should still apply. Retroactivity doesn’t mean prisoners will be released en masse; it means the mistakes in sentencing that have gone unchecked for decades will be corrected. Prisoners arrested for federal crack cocaine offenses who have served their time should serve only their time."
Though the press release does not fully explain who may be responsible for "misconceptions about retroactivity," it is obvious that Hillary Clinton is the chief culprit. As previously discussed here, Clinton this past weekend echoed comments by President Bush's Justice Department (noted here) and Republican members of the House Judiciary Committee (noted here) when indicating she is against retroactive application of the USSC's new crack guidelines.
I am pleased to see the ACLU trying to make sure facts and not fear drive this important sentencing reform discussion. I hope other sentencing reform groups like FAMM and The Sentencing Project will follow suit.
SCOTUS to finally issue opinions on Tuesday....
but my big question is whether Gall and Kimbrough are among those coming. This post at SCOTUSblog provides the basics of what we know tonight:
According to the Court's official opinion line, tomorrow will see the release of one or more decisions from the Supreme Court. If, as is widely expected, at least one of the decisions is a signed opinion disposing of an argued case, it will be the Court’s first this term... [W]hen the first signed opinion is released this term, it will be latest first opinion from an argued case since OT84, when Warren Burger was Chief Justice.
I doubt Chief Justice Roberts is eager to be following the administrative model set by CJ Burger, but all will be forgiven in my eyes if Gall and Kimbrough come soon and are effective opinions.